Case details

Plaintiff magnified symptoms following minor crash: defense





Result type

Not present

back, neck
On Oct. 5, 2011, plaintiff Robert Brown, 58, a rental car employee who drove rental cars from one agency to the next, was traveling on a freeway in Orange County when his vehicle was rear-ended by a vehicle operated by Peter Velau. Brown claimed to his neck and back. Brown sued Velau, alleging that Velau was negligent in the operation of his vehicle. Liability was not disputed., Brown claimed the impact, though admittedly appearing minor, caused permanent neck and back pain. He had previously suffered back problems, such as long-standing back pain, due to a significant injury sustained almost a decade before the subject accident. However, Brown claimed the 2011 rear-end accident caused his bumper to be dented in before it bounced back out and caused his vehicle to roll forward, thereby explaining why the damage appeared to be minor. Thus, he claimed the accident exacerbated his prior spinal , resulting in permanent neck and back pain. Brown presented to his treating doctor the day after the subject accident, and continued to follow up with his doctor. He also underwent approximately two months of chiropractic care, approximately eight to nine months of physical therapy, and three epidural injections two years after the accident (about seven to eight months after he stopped physical therapy and was not receiving any treatment). Brown claimed that despite treatment, he still suffers pain to his neck and back. He claimed he could no longer work and had been out of work for four years. He also claimed he has trouble walking long distances, could not cook, is in constant pain, and needs to constantly wear a neck collar. Brown claimed that as a result, he requires two surgeries, which include anterior cervical decompression and instrumented fusion at multiple cervical levels, and an anterior lumbar decompression and instrumented fusion at the L4-5 level. The plaintiff’s treating physiatrist testified that he had treated Brown for a number of years and that he believed that the accident caused Brown’s current pain. The doctor also opined that it was clear that Brown needed the surgeries alleged. In addition, plaintiff’s counsel attempted to portray the defense’s experts as “hired guns” brought in solely for “damage control.” Thus, Brown sought recovery of $47,492.12 for past medical costs, $100,000 for future neck surgery, $150,000 for future back surgery, $39,500 in past lost earnings for 158 weeks of missed work at a rate of $250 per week, and $6,000 in future lost earnings for six months at $250 per week. He also sought recovery of $90,000 in general damages for his past pain and suffering, and $70,000 in general damages for his future pain and suffering. In total, Brown sought recovery of $502,992.12. Defense counsel contended that the damage to Brown’s vehicle was minor, sustaining only $537.04 in repair costs, and presented photographs that barely showed any scuff marks. The defense’s accident reconstruction and biomechanics expert testified that the force of impact was minor and less than the forces found in daily activities. He testified that based on the property damage, repair estimate, accounts of the parties, and his examination of the scene of the accident, the collision did not involve forces sufficient to have caused any injury to Brown. Thus, the expert opined that it was unlikely that Brown was injured in the accident. The defense’s orthopedic surgery expert discussed Brown’s condition and opined that Brown engaged in symptom magnification and malingering. For example, the expert explained that Brown claimed that every test that was performed caused him neck pain, even the tests where no basis for pain should exist. The expert testified that only three weeks of physical therapy after the accident was warranted, as he believed Brown had only sustained soft-tissue whiplash that should have resolved within that period. He also disagreed that any future surgery would be related to the accident and disputed the need for surgery at that point in Brown’s treatment. The defense’s orthopedic surgery expert testified that he based his conclusions partially on the opinion of the defense’s accident reconstruction and biomechanics expert, who testified that the forces involved in the accident were likely minimal. Defense counsel argued that Brown made a series of contradictory statements at trial. Defense counsel contended that although Brown claimed he stopped work right after the accident, employment records were produced that showed that Brown had worked for three months straight after the accident and that the only reason Brown stopped working was because his employer closed down the business. Counsel also produced records showing that the plaintiff’s treating doctor found that Brown was feeling fine with only rest and pain medications. Defense counsel contended that although Brown testified that he stopped seeing his treating doctor because the doctor allegedly refused to change his choice of pain medications, records were produced that showed that the plaintiff’s doctor actually stopped treating Brown because he found out that Brown was getting medication from three different doctors. Counsel further contended that Brown admitted on the stand that he refused to sign a pain contract with his treating doctor, which would mean that Brown could only get pain medications from his treating doctor, and that when the treating doctor confronted Brown with about getting medication from other physicians, Brown threatened to call his lawyer if the doctor did not continue treating him. In addition, defense counsel contended that a number of Brown’s treating doctors were not informed that Brown had pre-existing conditions, nor where they aware that Brown was in prior and subsequent motor vehicle accidents (all of which resulted in greater damage to his vehicle). In response, plaintiff’s counsel contended that although the defense’s accident reconstruction and biomechanics expert testified that he examined the scene of the accident on multiple occasions, the expert testified that he only knew that the accident occurred somewhere along the Interstate 5 Freeway in Santa Ana and that he did not know near which exit the accident took place. Thus, plaintiff’s counsel argued that the defense’s expert’s “accident inspections” took place every time he commuted to Santa Ana in his car and that the expert never actually got out of his vehicle to inspect the scene. However, the defense’s accident reconstruction expert claimed that he was very familiar with the area.
Superior Court of Orange County, Santa Ana, CA

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